4. Reporting suspected misconduct
Last updated: 09 Jun 2015
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4.1 Obligation to report misconduct
4.1.1 APS employees have a responsibility to report misconduct, and not to turn a blind eye to unacceptable behaviour. How they should report misconduct will depend on the circumstances. More serious misconduct should normally be reported and dealt with in a more serious and more formal way. In some cases, especially those involving relatively minor matters, it may be most appropriate to raise the matter directly with the employee concerned in the first instance. This will be a matter of judgement. If in doubt employees should discuss the matter with their manager or someone in authority in their agency.
4.1.2 The APS Values, APS Employment Principles, and the APS Code of Conduct (the Code), in the Public Service Act 1999 (PS Act), set out standards and behaviours that are required of APS employees and agency heads. The APS Values require all APS employees to demonstrate leadership, be trustworthy and act with integrity (APS Values 10(2)). The Code requires APS employees, at all times, to behave in a way that upholds the integrity and good reputation of the employee's agency and the APS, as well as to comply with any lawful and reasonable direction given by their agency.
4.1.3 The Australian Public Service Commissioner's Directions 2013 (Directions) require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code.
4.1.4 Employees may also have reporting obligations under their agency's fraud control guidelines and other agency instructions. An agency's arrangements under the Work Health and Safety Act 2011 may require employees to report safety issues or hazards including workplace bullying.
4.2 Options for reporting misconduct
4.2.1 Agencies are encouraged to be proactive in providing mechanisms for both the public and employees to report suspected misconduct and promote any arrangements that are in place. Having effective processes in place for reporting of suspected misconduct contributes to the integrity of the APS.
4.2.2 Agencies may have more than one way for their employees to report suspected misconduct because of the complexity of their operations or to manage particular types of suspected misconduct. Employees may be more comfortable reporting concerns if they can do so relatively informally and have the option of discussing their concerns with the person to whom they are reporting.
4.2.3 Options for reporting suspected misconduct can include reporting to
- line managers18
- central conduct or ethics units
- nominated people in human resource areas including employee advice or counselling units or hotlines, fraud prevention and control units and hotlines
- email reporting addresses
- 'authorised officers' who receive public interest disclosures.19
4.2.4 If agencies make use of several avenues for reporting suspected misconduct, it is important that a central record is kept. This allows monitoring of trends and easy provision of consolidated data for the Australian Public Service Commission's annual State of the Service Report. Under s44(3) of the PS Act agencies must give the Australian Public Service Commissioner (the Commissioner) whatever information the Commissioner requires for the purposes of preparing the annual State of the Service Report. To date the Commissioner has routinely requested information about the number and nature of misconduct investigations. Further information about record keeping is available in Part III, Section 8 Record keeping and access to recordsof this guide.
4.2.5 Managers have an important role in encouraging and supporting staff who are considering reporting suspected misconduct. Research has indicated that it is managers' behaviour in the workplace and the culture they promote, as much as legislative and organisational systems, which determine whether conscientious staff speak-up.20 It is good practice for agencies to undertake periodic training and awareness raising activities so that employees and managers understand their responsibilities, and the relevant agency processes, in reporting and dealing with misconduct.
4.2.6 Some allegations of misconduct may be misconceived and without substance or may have been made vexatiously. Where an agency has concerns about the way, and circumstances, in which a particular employee has reported misconduct, it may be appropriate to advise the employee that making a frivolous or vexatious report of misconduct may in itself represent a breach of the Code.21
Agency responsibilities under the Public Interest Disclosure Act 2013
4.2.1 Agency heads have responsibilities under the PID Act to develop policies and procedures for dealing with public interest disclosures. Such disclosures may include allegations of misconduct of employees. Further information on the PID scheme can be found at the Commonwealth Ombudsman's website at www.ombudsman.gov.au/pages/pid and at Appendix 3 Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act.
4.3 Protections for employees reporting or witnessing misconduct
Anonymity, confidentiality and protection from retribution
4.3.1 Some employees may be concerned that they will be victimised, or discriminated against, for reporting suspected misconduct. For this reason, they may make reports anonymously or request that their identity is kept confidential.
4.3.2 Agency guidance material should advise employees that they may make reports anonymously but also provide assurance that employees who report in good faith will be protected from victimisation and discrimination.
4.3.3 Extra care needs to be taken when managing concerns about the identity of the person reporting misconduct when a misconduct investigation arises from a public interest disclosure made under the PID Act. The PID Act makes it an offence to disclose the identity of the discloser, unless the information is used for the purposes of the PID Act or taking action in response to a disclosure investigation. Further information about the handling of misconduct arising from a disclosure under the PID Act is available in Appendix 3 to this guide.
4.3.4 Employees who report suspected misconduct outside the PID Act are legally protected from discrimination or victimisation. Retaliatory action taken against someone who in good faith has reported suspected misconduct could be a potential breach of a number of elements of the Code, including the requirements to:
- behave with integrity in connection with employment
- comply with all applicable Australian laws
- treat everyone with respect, courtesy and without harassment.
4.3.5 In general, these protections also extend to witnesses in misconduct cases.
4.3.6 It is often necessary to reveal the identity of the complainant or a witness in order to provide the person under investigation with the information they need to respond fully to the allegations. Even if the agency considers that it is not necessary to reveal identities of complainants and witnesses during the course of its own investigation, the identities may be revealed on review by the Merit Protection Commissioner, the Fair Work Commission, in related criminal proceedings, or in the context of a legal challenge to the decision.
4.3.7 Accordingly, it is advisable for agencies to notify employees who report suspected misconduct, or provide witness statements, that the agency will seek to keep their identity confidential as far as possible but cannot give any guarantee of confidentiality.
4.3.8 In the majority of cases, complainants and witnesses do not face a serious risk of harm from reporting misconduct. Nonetheless, employees and witnesses may feel more confident about providing evidence in misconduct processes if they are assured that an assessment has been undertaken of the risk of retaliatory action, or other adverse outcomes, and that the agency has taken steps to put mitigation strategies into place. Agencies are advised to consider the risks in each case and develop strategies to remove or mitigate those risks, as appropriate.
4.3.9 Mitigation strategies need to be proportionate to the level of risk identified, and may include, but are not limited to:
- directing employees who are suspected of misconduct with respect to their behaviour towards the complainant and witnesses, including not entering into discussions about the incident/s with the complainant or other witnesses
- arranging for the employee suspected of misconduct to be temporarily assigned duties in another location while ensuring that there is no presumption of prejudging the matter
- assigning the reporting employee or witness other appropriate duties in another location
- developing and implementing a specially tailored protection plan in circumstances where there is a real risk to the physical security of employees, their families or property
- taking steps to ensure the fairness of employment decision-making affecting the complainant or witnesses, such as appointing an independent member to the selection committee for any selection exercise in which they are a candidate.
4.3.10 Agencies may wish to advise employees who believe they have witnessed misconduct to:
- make notes about what they have seen or heard
- keep any relevant documents and not make any written annotations on them
- report the matter through the appropriate channels but otherwise keep it confidential.
4.4 Key points for agency guidance material
4.4.1 Agency guidance material could include information drawn from this section on:
- encouraging employees to report suspected misconduct as part of their duty as an APS employee
- the different options available to employees to report misconduct including agency PID procedures
- confidentiality and protection from retribution, including the circumstances where confidentiality may limit agency action, advice relating to risk assessment and mitigation strategies that may be available and protection of disclosers required under the PID Act
- managing the expectations of the parties involved, including the employee making a report of misconduct and witnesses, about privacy issues in particular the use and disclosure of their personal information
- the obligations of managers to ensure that employees who report suspected misconduct are treated appropriately following making their report
- retaining and make records of evidence.
18 The reporting of suspected misconduct to a supervisor may also amount to a public interest disclosure within the meaning of the Public Interest Disclosure Act 2013.
19 Section 36 of the Public Interest Disclosure Act 2013requires agency heads to appoint authorised officers and s60A of that Act describes the additional obligations of supervisors to provide information to authorised officers.
20 Crime and Misconduct Commission (2004) Speaking Up—Creating Positive Reporting Climates in the Queensland Public Sector, Building Capacity Series, No. 6 page 2.
21 Special circumstances and protections for the employee may nonetheless apply if the employee has made those allegations under the Public Interest Disclosure Act 2013.